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Relationship between Totality and Proportionality

By: Enkhjin Dorjkhand and Noah Majić Končar

Sentencing is one of the foundational aspects of legal systems. In the case of England and Wales, the Sentencing Council was established to ensure transparency and consistency through sentencing guidelines. For instance, the Sentencing Council has emphasised the importance of considering culpability and harm in assessing the seriousness of a crime and thus the deserved sentence. This showcases the commendable intentions of the sentencing system. Despite this, this paper will highlight a possible tension that has been observed, between two principles; that of Totality and Proportionality, that have become pivotal in determining just sentences. This tension most prominently arises due to the different approaches the principles take regarding an offender that commits multiple offences at once. This tension will be explored in this paper firstly, through an exploration and evaluation of the Totality Principle. Secondly, the same for the Principle of Proportionality. Thirdly, the different possible stances on the tension will be investigated. This essay will present the arguments that the two principles are incompatible, ultimately concluding that, when evaluated critically, they can stand together.

One of the most fascinating guidelines put forward may be the Totality Principle. The concept of totality focuses on giving a just and proportionate sentence to those convicted for several offences. Due to the nature of the current justice system, it is admittedly easy for sentences, specifically prison sentences, to escalate beyond a just and proportionate duration. On the other hand, it should also be recognised that the minimum sentences outlined may not be considered enough. The principle is applied in two key ways: firstly, the judge or magistrate has the authority to order a consecutive or concurrent sentence with multiple offences. A consecutive sentence implies that the sentences for the individual crimes would be carried out one after the other, while concurrent sentences allow for a reduction in the overall sentence as the individual sentences would be carried out at once. In practice, the offender would only complete the duration of the longest sentence. Secondly, concerning the overall harm caused by the crime and culpability of the offender, if it is seen that the sentence may be either increased or decreased.

In essence, totality can be a beneficial tool in simplifying sentencing procedures and eliminating significant variations in sentencing for the same crime. Yet, in the same light, while totality simplifies sentencing and introduces equity, it also risks oversimplifying procedures, meaning that some cases that may need a more nuanced approach may be addressed more iniquitously.

Also, totality may be approached and applied differently depending on the jurisdiction; for example, in Australia, totality has a much stricter definition than in the UK and extends to criminal matters and civil courts. Whether totality can provide an equitable sentencing system depends on how it is interpreted. For example, totality extending to civil cases may be interpreted as over-complication, while some sentencing guidelines might be oversimplified. It is down to the sentencing guidelines to give enough room for specific cases where the case may be more nuanced, to allow for more flexible sentencing, but still having formulated guidelines to provide equity during sentencing. If this can be achieved, totality can be more equitable, allowing for fairer and more transparent sentences. However, it is essential to note that sentencing and its totality will never be perfect, and there will always be discrepancies.

Punishments should only be given in proportion to the seriousness of the crime committed. This idea is fundamental to the concept of justice and justice systems. In the case of England and Wales, Section 57(b) of the Sentencing Act 2020 provides five different purposes of sentencing when determining a sentence proportionally: “the punishment of offenders, the reduction of crime, the reform and rehabilitation of offenders, the protection of the public, and the making of reparation by offenders to persons affected by their offences”. However, throughout history, specifically the past century, the prioritisation of specific individual aims has fluctuated. Right after WWII, different institutions were established for the sake of intervention, for instance, the NHS; similarly, with the horrific crimes of the war still fresh, many thought it best to focus on rehabilitation when sentencing. Later, deterrence, meaning making sentences excessive to deter people from committing crimes, became popular. However, by the 1970s, people found that neither rehabilitation or deterrence had much effect. For rehabilitation, though it is the most optimum form of punishment for the sake of societal betterment through its idealism, in practice, it simply does not have enough effect for it to be deemed successful. In the case of deterrence, due to human psychology and the tendency to process information in a binary way, for instance, “prison or no prison”, deterrence lacks considerable impact as people do not recognise the change. Thus arises a new theory, the Just Deserts theory, as put forward by leading criminologist Andreas von Hirsch, which outlines proportionality as dependent on public opinion and perception of what is most proportionate. This emphasises the importance of societal opinion, especially as public trust is crucial for the functions and integrity of the system. This is generally done by giving out surveys to determine the seriousness of each crime.

While proportionality seeks to find the most proportionate sentence for a crime, it can become too complex for modern justice systems. Many justice systems recognised the limitations of the multi-faceted principle, from which the idea of Just Deserts arose. This idea states that to determine what sentence best fits a crime, public opinion should determine the severity of the sentences for given crimes. However, this can prove problematic, as acquiring a general consensus on the sentence for a given crime can be challenging. Not to mention that the time commitment to survey an entire population, according to the existing laws, would be a stretch to complete even for the most organised surveying structures. Yet, even if a pure form of Just Deserts has not been implemented, surveys have helped inform better judicial decision-making, especially since the failure of rehabilitation-based policies in the 1980s. The Just Deserts model has, therefore, shown that it is a reliable model of democratisation within the legal system and has informed better decision-making that has improved the rule of law. However, it is essential to discuss to what degree public opinion should be considered for sentencing. Because, perhaps, public opinion is sometimes too harsh in terms of sentencing and at other times not harsh enough. It might be the case that a similar system is adopted, but not the same as the UK’s. A cautious adopter of Just Deserts, one where surveys determine public opinions on essential aspects of sentencing but where a diverse and representative Sentencing Council leads final decision-making power.

Both the principle of totality and the principle of proportionality are important to consider for the process of just and fair sentencing. However, they are topics of dispute, not only when considered separately, but also when considered in tandem. By acknowledging both principles together, one may assume that the most optimal sentencing would be achieved. However, upon further consideration, it becomes apparent that the two principles do not necessarily align as seamlessly as would be expected. Though it is admitted that totality fits under proportionality, a problem arises when it is realised that how they respectively construe seriousness differ. Whereas proportionality prioritises the seriousness of each individual case, totality considers the total seriousness of the offences. Thus two views on this matter arise, firstly the incompatibilist view emphasises the tension between the two principles, arguing that they can not both be effectively adopted and practised, on the other hand, the compatibilist view points out the intrinsic relationship between the two, with totality being derived from proportionality.

The incompatibilist view is rooted in the idea that totality and proportionality have conflicting priorities, as totality considers the seriousness of the total offences, and proportionality considers the seriousness of individual offences. This is most clearly demonstrated in the case of a single offender committing multiple offences on the same occasion. The totality principle's purpose is to ensure that the overall sentence is just and reasonable; this is based on the morally intuitive assumption that the seriousness of offences do not increase in a linear fashion. The principle of proportionality and its applications also make this assumption, how when applied to the specific case of multiple offences, the way in which an approach based purely in proportionality would proceed would be indeterminate and too abstract for efficient practical use. Even in the instance of a singular offender committing multiple offences over an extended period of time, it is important to recognise that crimes committed in the beginning would be more morally significant, thus impacting the perception of the later offences’ seriousness. This also addresses how the relationship between quantity and seriousness over an extended experience with committing offences may not be linear either.

While theoretically, proportionality and totality feature opposing viewpoints, totality and proportionality can work in tandem. For example, while sentencing guidelines are an example of totality, applying the Just Deserts model, where sentencing guidelines are shaped based on public opinion, means that theoretically, the totality measures are proportionate to the crimes, at least in the realm of public opinion. Yet, a counterargument to this would be that there is no single way of determining definite public opinion on a certain crime. Therefore, proportionality diminishes in this case, and proportionality and totality cannot be compatible nevertheless, even if that is the counter argument, under a system like the UK’s where public opinion is taken into account and where guidelines through the use of totality give enough space for a proportionate response. It is only fair to see that while flawed, proportionality and totality are compatible and work in tandem to support the rule of law. Totality as a way of simplifying and regulating procedures, and proportionality as a way of finding the correct sentence for the crime.

Therefore, when evaluating the tension between totality and proportionality, this paper has found that they can be compatible if some compromises on theory from both sides are made. These compromises may even prove to be beneficial, as living in a world with pure proportionality would be too complex, and living in a world with pure totality would be mercilessly simple. Thus, it is only natural to assume compatibility so that each case's complexities are considered. This approach allows use of totality to avoid the risk of faulty judgements and over-complexity. That is not to say, however, that when the pure theory of proportionality and totality are compared, they can not be seen as somewhat contradictory. It should be acknowledged that there is a clear tension between the two when their theories are examined side by side. Purely from the lens of proportionality, they are incompatible as totality and relating guidelines aim to treat all cases similarly, and therefore, doesn’t provide justice to the case participants because the punishment is not purely proportional to the crime. Yet, from the perspective of totality, proportionality is too multifaceted in its purest form and gives judges too much power. This is particularly considerable when evidence has shown that they consistently make mistakes when afforded such immense power. Nevertheless, even with these considerations, proportionality and totality should be viewed as compatible.

The application of the Just Deserts model across common law systems allows for this. Where justice systems provide totality through guidelines so as to give judges a framework and simplify the system, they also seek to make these guidelines proportional by first allowing freedom for unique sentences (in specific circumstances when the guidelines don’t cover the breadth of the crime), and also conducting public surveys to determine what the public thinks the most proportional response should be. Therefore, in turn, creating as close to as can be, proportional guidelines, fusing the two principles. Of course, in pursuing that, some of the conventional theories from both have to be compromised, but this seems to be beneficial to the rule of law because it provides moderation of both principles, allowing for an efficient but fairly proportional justice system. It is still essential to note that some law scholars may view assigning sentences based on majority opinion as potentially dangerous. It has been shown that the public generally assigns harsher sentences to crimes than those already available through the legal system. Is this good or bad, should the majority opinion be adopted, or is that dangerous? A whole book could probably be predicated on this argument. However, this paper aims to investigate the tension between totality and proportionality. Whether you disagree or agree with the Just Deserts model, this paper finds that totality and proportionality can be compatible in a fluid system (like Just Deserts) or even with cautious adopters like the UK.